Vol. 2, No. 6
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Jan. 15, 2005
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CRIMINAL DEFENSE |
COPYWRITING
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Nevada Election Law Flaws Apparent In Moncrief Hearing
"It" Has Hit The Fan Following Augustine Impeachment Mess; Now Is Time For Action
Legislature Needs To Buckle Down And Face The Issue
by Johnny Gunn
Brewing for several years, it has become apparent even to the most jaded among us that Nevada's election laws are incapable of keeping politicians in line ethically, more or less legally. Now comes even more turmoil within what might be considered the confines of election law; the Janet Moncrief trial on criminal charges has brought to the surface a serious rift between the Secretary of State and the Attorney General. While members of both agencies' staffs are taking pot-shots at each other, the two elected officials now are saying, hey, we're cool.
Being cool, saying they have gotten along for years doesn't take away from the fact that a major court case is about to go up in smoke, and the Nevada election law is going to once again be bashed and bruised. Heller has said he doesn't care what happens in the Janet Moncrief case.
Political Split At Highest Levels Of Government
When charges of campaign law violations against Las Vegas City Councilwoman Janet Moncrief surfaced, they came by way of a grand jury investigation led by Attorney General Brian Sandoval, reportedly at the request of the state's top election official, Secretary of State Dean Heller. The correspondence between the two reflects a difference of opinion.
Heller, in correspondence released on Tuesday, January 11, says his office was opposed to moving forward with a grand jury investigation of Janet Moncrief. Heller questioned the veracity of the witnesses. He went on to say, because he hasn't seen the state's investigation into the case, he wasn't in a position to say whether or not Moncrief should have been criminally charged. After some snotty comments back and forth between the two agencies, the letters were released for public consumption.
One person very close to the case, Las Vegas columnist Steve Miller who worked on the Moncrief campaign and testified before the grand jury disputes most of what Heller is saying. "His [Heller's] 'Shoot the Messenger' type remarks and infighting with Attorney General Brian Sandoval, if continued, could scuttle the AG's sound legal case and lower the bar for all future Nevada elections."
Sandoval denies there is any rift between himself and Heller, saying he believes it's the press that escalated the situation.
Among the charges in the grand jury indictment are some suggesting that Moncrief paid cash to young people during her campaign, but that doesn't appear on her expenses reports. Miller also says that there were pamphlets printed and distributed that don't appear on her expenses reports. Indications are that many thousands of dollars of unexplained expenses are involved.
Judges are being challenged at the bar and legally for not reporting campaign expenses and contributions (C&Es), the state Controller has been impeached, an Assemblyman has been fined, and a Las Vegas City Councilwoman has been indicted. All of the above have been treated differently, and that's the crux of the matter in the case against Janet Moncrief.
It is because of this "difference of opinion" between Sandoval and Heller, between the various ways in which campaign law violations are treated, and because state law simply isn't being followed or even understood by many, that the legislature must take responsibility and action this session.
The Janet Moncrief Indictment
Is it any wonder Clark County District Judge Nancy Saitta is contemplating tossing out an indictment against Las Vegas City Councilwoman Janet Moncrief? Saitta is wondering whether or not selective prosecution might just be the norm in the Attorney General's approach to alleged campaign law violations.
A Grand Jury investigation handled by Attorney General Brian Sandoval resulted in several charges being filed against Moncrief, and Moncrief has responded by filing a writ of habeas corpus in Clark County District Court. At the first hearing, District Judge Saitta ruled that a further hearing must be held because of what she has perceived as selective prosecution, based on all the other election law charges that have come about in the last couple of years.
In addition to the criminal charges brought against Moncrief, the indictments have led to a recall election. The dates of the next court hearing and recall election are two weeks apart. The recall election in Ward One is coming up January 25, and the evidentiary hearing on whether or not there will be an election law trial is to take place February 17 in Saitta's court.
The grand jury handed down four counts of offering false instrument for filing or record, and one count of statement made in declaration under penalty of perjury. These charges could bring one to five years of prison time each, and fines of up to $5,000 on each charge. Moncrief's attorney, Richard Wright, claims the Attorney General is practicing selective prosecution and Saitta has scheduled a further hearing to listen to his challenges.
Nevada's election laws need to be rewritten and brought up to date during the next session of the Legislature according to many. Keeping in mind that all members of the legislature are politicians, it will take some serious thinking and several tons of wisdom to correct what is so obvious to so many. Arizona Senator John McCain was unable to do it at the federal level, it will interesting to see if there might be someone strong enough to correct Nevada's problems.
The Janet Moncrief situation is not unique, and it's because of that that Heller and Sandoval are at each other's throats, or if you prefer, their minions are at each other's throats. While the law demands C&E reports be filed, it doesn't call for any review of the reports, nor does it demand that charges be filed when there are indications the law has been broken. There are even questions as to whether certain violations should be treated as felonies or misdemeanors. The various laws and rules have been so muddied in the last few years that they need a complete rewrite.
Almost immediately after the grand jury charges were filed, there were demands for a recall election in Ward One. That election is scheduled for January 25, and Moncrief says she expects to continue serving Ward One electors. There are two opponents on the ballot, Vicki Quinn and Lois Tarkanian.
Quinn has been an activist for the disabled over the years, and Tarkanian is a former member of the Clark County School Board. To make the ballot, each had to turn in petitions with at least 2,106 valid signatures of registered voters in the district. Both were able to do that. Early voting will be held on January 21 and 22.
Here are some of the reasons that help to prove that election laws in Nevada are incomplete and impossible to understand.
Alleged Judicial Impropriety
Former District Judge, now Supreme Court Justice James Hardesty didn't even sign his current C&E first period report; he had an accountant do that, which is against the law. Nobody cares. More than half a dozen judges or former judicial candidates are accused of violating not just campaign law but ethics canons as well. According to the Clark County Republican Central Committee, three of those candidates paid $5,000 to appear on a flier. All judicial offices are supposed to be non-partisan. The expenses weren't reported. Another six, who reportedly did not pay to be listed but were anyway, may have violated those judicial canons by being listed, and in the case of many, the listing did not appear as an in-kind expense on their C&E reports.
No charges have been recommended by Secretary of State Dean Heller or filed by the Clark County District Attorney or Nevada Attorney General Brian Sandoval.
Among those who paid to be listed are Betsy Gonzalez, incumbent District Court Judge who won election; Stefany Miley who won her election to Family Court; and Jim Gubler who was defeated for a seat on Clark County Justice Court.
Six judicial candidates who were included in the mailing, but didn't pay include:
• Bernie Zadrowski, unsuccessful candidate for Justice Court (He listed the mailer as an in-kind contribution on his C&E);
• Family Court Judge Dianne Steel, defeated in her run for Supreme Court;
• John Mason, defeated in his run for Supreme Court;
• Elizabeth Halverson, defeated in a run for Family Court;
• Family Court Judge Gerald Hardcastle, who kept his seat; and
• Sandra Pomrenze who won her seat on the Family Court bench.
An Assemblyman Spends On Himself
If you're going to break a rule, make it a big one. During this last election cycle Assemblyman Chad Christensen was accused of using campaign funds for himself. It is against the law to spend campaign funds on something other than campaign expenses. Sounds reasonable as far as it goes, but when does it become ridiculous? In Christensen's case, more than 50 violations were charged, and he pleaded guilty to all of them.
But, and here's the rub as far as the Moncrief situation is concerned, he was fined by the Secretary of State. And then, only $4,500. More than 50 parking tickets would cost more than that. The Attorney General does not appear to be involved in the situation.
There is no such thing as a "normal" approach as to how campaign law violations are handled, and that is primarily what Saitta is concerned with.
During this last election cycle, candidates all over the state refused to fill out their C&E reports. Virtually every Independent American Party (IAP) candidate has refused to fill out the reports, and not one single charge has been filed by either the Secretary of State or the Attorney General.
The fact is, when the C&E reports are filed, they are not even looked at by the elections division of the Secretary of State's office or by various county clerks around the state. According to Heller, even if he looked at the reports and found violations he couldn't do anything about them. He says, and this might be decided in a court case coming up, that by law only a citizen outside his office can file a complaint.
The Supreme Court in a recent decision said the State Ethics Commission did have the right to file charges in campaign law violations. Unfortunately, the decision dated back to when the ethics commission handled elections. The Legislature has since transferred those powers to the Secretary of State. Will the Supreme Court decision follow over to the Secretary of State? A current court case at District Court level might answer that part of the question. That would give the Secretary of State the authority to investigate on his own charges of election law impropriety.
Maybe the question should be not who cares, but why have the reports? Going back to the first Nevada Observer article on C&Es, more than one political cynic actually voiced that opinion. The actual quote was, "no one sees them anyway."
State Controller Augustine Impeached
Nevada's election laws are flawed, in respect to contributions and expenses, in respect to how violations are handled, in respect to who should be responsible for finding violations in the first place, in respect to eliminating the potential for selective prosecution.
Nevada currently is riding a wave of good opinion as far as how elections are handled. The 2004 election cycle was all but flawless. The new touch screen voting machines with their attached paper trail seem to have operated very well, indeed. Secretary Heller and his entire staff should be commended, and if he is able to produce a statewide voter registration system that is equally well accepted, he will be proving that his office is deserving of all this praise.
Heller is burdened however with antiquated and unrealistic campaign laws, cannibalized over several different legislative sessions into something all but unworkable. A law says one thing, but denies him the opportunity to see if the law has been broken. Why have it in the first place? A law indicates that it is a crime to do something, but instead of bringing criminal charges, the Attorney General files an ethics violation? More than 50 violations of a law are splintered and a minimal agency fine is imposed?
State Controller Kathy Augustine was investigated for violating a part of Nevada's election law that says an elected official cannot use state workers on state time to do campaign work. This was a criminal investigation, and Attorney General Brian Sandoval had criminal charges written and ready to be filed, but for some reason he has yet to explain, his office filed ethics violations on the charges.
Augustine, with the threat of criminal charges being held over her head pleaded guilty to three violations before the State Ethics Commission and was fined $15,000. Read that sentence very carefully, Mr. Christensen, because you got off with a gentle little tap on the wrist.
The guilty plea by Controller Augustine triggered a constitutional effort at impeachment. The state constitution says that following the guilty plea, she would be faced with impeachment charges. The governor called a special session of the legislature, the Assembly impeached her on three charges, and then the concept of election law went right out the window. In the Senate, Kathy Augustine was found guilty of one article of impeachment and was censured.
She did not lose her job, the state spent hundreds of thousands of dollars on a special session of the Legislature, and more than one politician has egg spread about his or her face. Judge Saitta's hearing will be held as the Legislature begins the 2005 biennial session, so there is much on the line. Will the legislature step up to the plate, or hide behind their expensive new laptop computers and get involved in a game of solitaire?
[For a review of the defects in Nevada's current campaign finance laws, click here.]